Immigration News

On May 13, 2021, the U.S. Department of Labor (USDOL) published a notice in the Federal Register further delaying the implementation of the agency’s final rule on the computation of prevailing wages for PERM labor certifications and Labor Condition Applications until November 14, 2022 (with a phased-in transition to the new computation system). The final “Wage Rule” was initially scheduled to go into effect in March 2021 (with an effective date of July 1, 2021, and a phased-in transition to the new wage computation system). The new “Wage Rule” would have significantly changed the way the USDOL calculates prevailing wages. In February 2021, the USDOL published a notice in the Federal Register delaying the implementation of the final rule. In March 2021, the USDOL published an additional two notices further delaying implementation of the rule. The USDOL is delaying implementation of the new “Wage Rule,” so that it can research how the rule will affect the U.S. economy, U.S. employers, and both U.S. and foreign workers. Our hope is that the USDOL will decide to withdraw the new “Wage Rule” after it completes its research.

Acting Associate Director of Service Center Operations for USCIS Connie Nolan has confirmed that the requirement of biometrics for H-4, L-2, and E-1, E-2 and E-3 categories of Form I-539 will be suspended for 24 months, beginning May 17, 2021. Since March 2019, USCIS has required all individuals submitting a Form I-539 application to complete biometrics. The policy has resulted in numerous lawsuits that have challenged the reasonableness of processing times due to unprecedented backlogs of Form I-539 applications.

The suspension of the biometrics requirement is to apply to Form I-539 applications in H-4, L-2, and E-1, E-2 and E-3 categories that are pending as of the effective date of the policy and have not yet received a biometric services appointment notice, and new applications received by USCIS after the effective date of the policy through the stated expiration date.

Starting on April 23, 2021, the UK is imposing a travel ban on travelers arriving in the UK who have been in India within the past 10 days. There is an exemption for UK citizens and those who are UK residents, but they will still be required to pay for a mandatory 10-day stay in a designated quarantine hotel. India joins the following countries on the UK’s “Travel Ban List”: Angola, Argentina, Bangladesh, Bolivia, Botswana, Brazil, Burundi, Cape Verde, Chile, Colombia, Democratic Republic of Congo, Ecuador, Ethiopia, French Guiana, Guyana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Oman, Pakistan, Panama, Paraguay, Peru, the Philippines, Qatar, Rwanda, the Seychelles, Somalia, South Africa, Suriname, Tanzania, the UAE, Uruguay, Venezuela, Zambia and Zimbabwe.

As of April 23, 2021, many countries have imposed COVID-related travel bans and restrictions on travelers who have been physically present in India. Canada has issued a 30-day ban on direct flights to Canada from India. The U.K. has banned travel to the U.K. for anyone (except UK citizens and those with UK residence) who have been physically present in India for the past 10 days. Australia is limiting direct flights from India to Australia. Many other countries such as the UAE, Japan, Singapore, Pakistan, and Oman have also imposed additional travel restrictions on travelers from India. While the U.S. has not yet imposed a travel ban or additional travel restrictions on travelers coming from India to the U.S., the CDC has placed India in the highest COVID risk category (Level 4) and is advising against travel to India. The CDC warns that even those who have been fully vaccinated risk contradicting COVID variants and spreading them while in India.

The U.S. Department of State has published the May visa bulletin, and there are significant advances for several categories. USCIS has stated that Final Action Dates must be used for all employment-based preference categories. In the family context, F2A applicants may file using Final Action Dates. All other family-sponsored preference categories must use Dates for Filing.

The May visa bulletin shows great forward momentum in multiple areas in the employment-based permanent residence context. EB-1 remains current for all countries of chargeability. In EB-2, the cutoff date for India advances to August 1, 2010, while EB-2 China moves ahead to December 1, 2016. EB-2 remains current for all other countries of chargeability. EB-3 India moves up to February 1, 2011 and EB-3 China’s cutoff date advances to May 15, 2018. EB-3 remains current for all other countries of chargeability.

Wondering if your priority date is current, or just starting the permanent residence process? Contact CYA today to schedule a consultation with one of our attorneys!

The Biden Administration has announced that it will appoint new DHS leadership including: (1) Ur Jaddou, USCIS Director; (2) Jon Meyer, DHS General Counsel; (3) Chris Magnus, CBP Commissioner; (4) Rob Silvers, DHS Under Secretary for Policy; (4) John Tien, DHS Deputy Secretary; and (5) Jen Easterly, Cybersecurity and Infrastructure Security Agency (CISA) Director. Click here for more information.

Since June 22, 2020, many categories of nonimmigrants have been prevented from seeking entry to the United States due to Presidential Proclamation 10052. Enacted by former President Trump, the proclamation drastically reduced visa issuance and entry for nonimmigrants around the world. The ban was set to end on December 31, 2020, but was subsequently extended through March 31, 2021, citing the false premise that these nonimmigrants threatened our country’s economic recovery from the COVID-19 pandemic.

As of today, April 1, 2021, the ban has officially expired, and the Department of State (DOS) has confirmed that the ban is no longer in effect.  The DOS has issued guidance regarding the phased resumption of visa services, but ultimately concludes that consular services will operate on a “post-by-post” basis. Accordingly, visa applicants should not assume that the expiration of the visa ban will result in immediate resumption of routine nonimmigrant visa processing.

COVID-related travel restrictions and travel bans are still in effect and are changing daily. We are still advising all of our clients to pay careful attention to these changes and know the risks associated with international travel at this time.

U.S. Immigration and Customs Enforcement (ICE) will extend the flexibilities pertaining to Employment Eligibility Verification (Form I-9) compliance that were announced in 2020, due to the COVID-19 pandemic. This extension includes guidance for employees hired on or after April 1, 2021 and who are working exclusively in a remote setting as a result of COVID-19 policies and precautions. Such employees are temporarily exempt from the physical inspection requirements associated with Form I-9 until the earlier of the following: the employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated. The I-9 compliance flexibility policy is being extended until May 31, 2021.

DHS had previously announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with Form I-9 under section 274A of the Immigration and Nationality Act, as a result of precautions implemented by employers and employees associated with COVID-19. This policy, however, only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, there are no exceptions at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

The U.S. Department of State announced late last week that consular officers have an expanded ability to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same visa classification as they currently hold. The prior policy allowed for an interview waiver for individuals whose nonimmigrant visa expires within 24 months. The current, revised policy allows for an interview waiver for individuals whose nonimmigrant visa expires within 48 months. This expanded policy is in effect now through December 31, 2021.

This is a positive change to nonimmigrant consular processing that will allow for more streamlined visa processing as well as will reduce the risk of COVID transmission as fewer visa applicants will need to physically visit U.S. consulates and embassies for in-person interviews. Visa applicants who believe they may be eligible for an interview waiver should consult the website of the U.S. consulate or embassy they will be renewing through for further instructions and eligibility information.